Today’s News & Commentary — February 14, 2017

Happy Valentine’s Day!  Those celebrating should be careful not to run affront of labor and employment law.  The Richmond Times-Dispatch notes that “when a gift is received unexpectedly from a co-worker on Valentine’s Day of all days, it raises the creep level to litigation status.”  Their special correspondent advises readers to keep their celebrations out of the workplace.

Donald Trump’s selection for Secretary of Labor, Andrew Puzder, continues to face difficulties with his nomination.  According to CNN, four Republican senators – “Susan Collins of Maine, Lisa Murkowski of Alaska, Tim Scott of South Carolina and Johnny Isakson of Georgia” – are withholding support for Puzder pending his confirmation hearings.  Republican leaders will lobby the four senators, but if they cannot be swayed Trump may replace Puzder.

After a long campaign, a little over 3,000 Boeing workers in Charleston will finally vote tomorrow on unionization.  The New York Times reports that the election represents a key test of the strength of organized labor in the early days of Trump’s presidency.  Boeing was enticed to open the plant in South Carolina in large part because of reduced labor costs relative to their operations in the Seattle area, partly driven by the lack of unionization.

In other news, graduate students at colleges and universities continue to mount union organization campaigns.  Organizers and students continue to make their case at Duke University and the University of Maryland, for example.

Guest Post: The Ghent System and Progressive Federalism

Matthew Dimick is Associate Professor of Law at the University at Buffalo School of Law.  He can be reached at mdimick@buffalo.edu.

Last week, the US Department of Labor released its latest union membership statistics.  In 2016, the rate of union membership among wage and salary earners—or union density—was 10.7 percent, down 0.4 percent from the previous year.  Unsurprisingly, union membership remains low, and far below its historical high point.  In 1964, for example, nearly a third of workers belonged to a labor union.

Union density is not the end-all and be-all of unionism, but it’s hard to overestimate its importance for succinctly capturing the strength of a labor movement.  Union members pay dues, are more likely to vote (and probably more likely to vote Democrat), and are more likely to participate in job actions and other tactics necessary to put economic pressure on an employer.  Even more broadly (and loftily), union membership initiates workers into an institution of community for both transcending differences (e.g., between races and genders) and developing broader, collective interests.

It’s not surprising therefore that goal number one of the labor movement has been to reverse the decades-long decline in union density.  This goal takes on existential proportions in light of the continued legal and political assaults on labor unions.  Last year, public sector unions—constituting no less than 40 percent of total union membership—dodged a bullet when the death of Justice Scalia led to a deadlocked Supreme Court in the Friedrichs case.  Had Justice Scalia lived, it is almost certain that the Court would have allowed public sector workers to enjoy the benefits of collective bargaining without having to join the union or otherwise contribute to supporting it financially.

Unfortunately, with a Trump presidency, labor supporters weren’t allowed much of a reprieve.  And given the larger political climate and vicissitudes of national labor law, this should impel the labor movement to seek out other ways of building union membership.  One of these ways, as I discuss in this post, is to adopt what is called the “Ghent system.”

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Today’s News & Commentary — December 21, 2016

The D.C. Council voted yesterday to pass the Universal Paid Leave Act, one of the most generous paid parental leave laws in the nation.  As Politico and the Washington Post explain, the Act provides private-sectors workers with eight weeks of paid time off after the birth or adoption of a child, six weeks off to care for an ailing family member, and two weeks of personal sick time.  Despite worries that Mayor Bowser and the city’s business establishment would block the bill, it passed by a veto-proof margin of 9 to 4.  Coverage of the bill is also available at Forbes.

On Friday, Columbia University filed a challenge with the NLRB over the recent graduate student unionization vote.  The university has alleged that GWC-UAW organizers participated in various forms of coercion and intimidation.  The New York Times reports that students gathered on Monday to protest, accusing Columbia of trying to drag out the fight until Trump appoints new members to the NLRB.  In an emailed statement, Columbia “took a more bureaucratic approach,” stating the following: “Our objections were filed with the N.L.R.B. as part of its established procedure for determining whether the conduct of the election was appropriate.  We share the N.L.R.B.’s goal of ensuring a fair electoral process and protecting the rights of all students.”

According to ReutersTrump’s declared infrastructure plan would “collide” with the country’s skilled labor shortage.  The Transportation Department estimates that over two-thirds of U.S. roads are in “less than good condition,” and nearly 143,000 bridges need repair or improvement.  At the same time, there currently exists a shortage of construction workers: the National Association of Home Builders estimated earlier this year that around 200,000 construction jobs in the U.S. remained unfilled.  That number represents an 81 percent increase in the last two years.

What Will a Trump NLRB Mean for Graduate Teaching and Research Assistants?

The D.C. Circuit once observed that “[i]t is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board.”  In 2000, the Clinton Board found that teaching and research assistants at private universities are “employees” covered by the NLRA; in 2004, the Bush Board found that they were not, and in 2016, once again, the Obama Board found that they were employees.  This has led to speculation that a Trump Board will deny employee status to teaching and research assistants.  In acknowledging this possibility, I don’t want to suggest that this result would be reasonable – the majority opinion in the Board’s 2016 Columbia University case offers a compelling statutory analysis in support of its conclusion.  By contrast, the dissent’s position largely relies on speculation about the effects of collective bargaining on universities, with a particular emphasis on the potential disruption from the use of economic weapons.  Oddly, the dissent fails to acknowledge that many of these weapons – strikes, lockouts, loss of academic credit, loss of prepaid tuition – would be available even if the Board denies employee status to teaching and research assistants.  In fact, Congress enacted the NLRA in the hope that encouraging collective bargaining would minimize industrial strife and unrest.  But, if a Trump Board nevertheless rules that teaching and research assistants are not “employees,” what will happen at Harvard and Columbia, where teaching and research assistants have already voted on unionization?  Assuming they vote in favor of unionization, their unions should be safe for at least an initial contract cycle.

The NLRB does not simply issue fiats setting forth policies.  Instead, it decides particular cases.  In deciding cases, the Board often sets policies that have much broader implications, but even if a majority of Board Members would like to overturn a particular precedent, they must wait until they have a case that raises the issue.  You might think that Harvard or Columbia could raise the issue with the Trump Board simply by refusing to bargain with a victorious union.  But, when an employer refuses to bargain with a newly certified union, since the earliest days of the NLRA the Board has adhered to a policy of refusing to allow the employer to raise issues that “were or could have been litigated in the underlying representation hearing.”  This is true even where the issue raised by the employer is jurisdictional.  For instance, the NLRA definition of “employee” excludes individuals employed as supervisors.  But, where employers have argued that a bargaining unit improperly includes supervisors, the Board has refused to address those claims in refusal-to-bargain cases following a union election.  This has been true even where the Board Members have suggested that they were sympathetic to the employer’s position on the merits.  In Evergreen New Hope Health & Rehabilitation Center, a 2002 case, the employer argued that a newly certified unit improperly included statutory supervisors.  Board Members Hurtgen and Bartlett both noted in a footnote that they did not necessarily endorse the decision that had been reached in the representation case, but nevertheless the issue raised by the employer was not “properly litigable” in the refusal-to-bargain case.

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Fact and Fiction About Graduate Student Unionizing

When the NLRB in Columbia University held that university student workers are “employees” with the right to unionize, it restored at private universities a right student workers had between 2000 and 2004, a right that their counterparts have had in medical education for almost 20 years, and, most compelling, a right that many public university student workers have had for almost 50 years.  Given this long history of unionization — about 64,000 grad students at public universities in ten states are unionized — I am astonished that university lawyers and PR people are still arguing with a straight face that unionization will undermine education.  Let’s look at the universities’ arguments and at the facts.

Mentoring Relationships.  Universities argued to the NLRB, and to the press, that graduate student unions prevent or undermine the mentoring relationship between faculty and students.  The NLRB majority thought the empirical studies of the effect of unionization on educational mentoring relationships showed otherwise.  A 2013 study comparing student-faculty relationships, academic freedom, and economic well-being across unionized and non-unionized campuses confirmed the findings of prior surveys: unionization does not interfere with faculty-student relationships or harm the education or training of graduate students.  Indeed, unionized graduate students reported higher levels of personal and professional support and unionized graduate student employees fared better on pay.  Additionally, unionized graduate students “had higher mean ratings on their advisors accepting them as competent professionals, serving as a role model to them, being someone they wanted to become like, and being effective in his or her role.”

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Today’s News & Commentary — August 30, 2016

A new study released by the Economic Policy Institute and co-authored by OnLabor Senior Contributor Jake Rosenfeld won’t surprise readers with its key finding – a significant link between the decline in union membership and increased income inequality in America.  Salon notes that the researchers “looked at both urban and rural regions of the country as well as areas with strong and weak union representation to gain a better perspective on how declining union numbers affect nonunion working men and women as well as those workers with some higher education and those with just a high school diploma or less,” finding that “working-age men without high school diplomas have been hurt the most in comparison with such workers nearly four decades ago.”  The American Prospect further reports that “union membership makes a tremendous difference for people who do not have college degrees.”

Following up on last week’s National Labor Relations Board ruling that graduate students at private universities are statutory employees who can unionize under the National Labor Relations Act, Inside Higher Ed highlights a crop of “anti-union” websites launched to deter students from organizing.  Since the ruling “Columbia, along with HarvardPrinceton and Yale Universities and the University of Chicago, have posted information online about the possible effects of unionization.  Most point out that all union members must pay dues and are expected to participate in strikes, should they occur, and that unionization won’t necessarily improve their working conditions.  Some contain concerns previously voiced to, and largely rejected by the NLRB — namely that unionization compromises the student experience in a number of ways.”

In March, OnLabor’s Sara Ziff asked if Donald Trump’s modeling agency was flouting immigration and employment agency law – and a new Mother Jones report confirms the answer is in fact a ‘yuge’ yes.  In fact, “the mogul’s New York modeling agency, Trump Model Management, has profited from using foreign models who came to the United States on tourist visas that did not permit them to work here, according to three former Trump models, all noncitizens, who shared their stories with Mother Jones.  Financial and immigration records included in a recent lawsuit filed by a fourth former Trump model show that she, too, worked for Trump’s agency in the United States without a proper visa.”

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Today’s News & Commentary — April 26, 2016

Once a friend of the United Auto Workers, Volkwagen has truly become a foe.  The New York Times reports that yesterday “Volkswagen announced that it would go to federal court to appeal a recent victory by the U.A.W.  Late last year, a majority of the Chattanooga plant’s 160 maintenance workers voted to accept representation by the union.”  While Volkswagen had previously been committed to bringing German-style councils to the plan, management turnover and company troubles have resulted in a changed strategy.   The NLRB has called on Volkswagen to begin bargaining with the workers, but the company wants all 1,500 plant workers to vote on unionization.

The court battle over right-to-work continues in Wisconsin.  According to the Milwaukee Journal Sentinel, “a Dane County judge declined Monday to put on hold his ruling that found unconstitutional a Wisconsin law barring unions and businesses from reaching labor deals requiring workers to pay union fees,” and attention will now turn to the state’s Court of Appeals.  Notably, Wisconsin’s Supreme Court is “controlled 5-2 by conservatives.”

Not all gig economy firms are fighting organized labor.  Skift notes that Airbnb has been negotiating with the SEIU over the use of organized housekeeping services by hosts.  No agreement was reached, but representatives from the SEIU and UNITE HERE did meet with Airbnb.  The American Prospect has more on how the Uber settlement and “the SEIU-Unite Here brouhaha has created more questions than answers to how unions—and the labor movement more broadly—can effectively combat the harmful consequences of Silicon Valley’s disruption of the employer-employee relationship.”

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